A few days ago I blogged on a scary study that suggested that the big variable in decisions where judges had a lot of discretion was how long after the meal/break the case was heard. The study found a huge difference in parole decisions made by Israeli judges depending how soon after the most recent break for a meal the cases were presented. Since the hearing order was determined by when the attorney arrived, it seems about as random as you can get. (It might be that the better-prepared and more hopeful attorneys might arrive earlier in the day, but that would not explain the relationship of decision to position after the break, only after the beginning of the session.)
It appears from the statistical analysis that it is not so much the amount of time since the break, but the number of decisions made since the break that is the real factor. In other words it is a form of mental exhaustion, rather than a general physical tiredness. The authors note that favorable decisions took longer and were justified by longer written explanations (almost twice as long, 89.61 words on average, versus 47.36 words on average.)
After reflecting more, I have some theories for may be going on:
1. Hunger/Mental Tiredness Reduces Risk Taking Decisions
This theory rings right to me. When you are tired and hungry, you are less ready to respond well to crisis or problems. One rational response is not to engage in behavior that increases the chance that you will need to respond to a crisis. While any bad consequences from an erroneous decision will only show up long after the hearing, that’s not the way the subconscious works, so we may avoid long term risk just as much as short term risk, and theoretical risk just as much as real risk.
2. Hunger/Tiredness Makes People Do the Usual Thing
This theory is closely related — at least in any anti-risk culture. Explaining a deviation from the norm takes more energy.
3. Hunger/Tiredness Increases Anger At Those Who Break the Rules
This also makes a lot of sense to me. When you are irritated it is much easier to rush to judgment than to consider more sympathetic explanations of seekers behavior. (Alternatively, feeling one’s own anger might make one feel it more likely that a parole seeker will act out his or her anger, and best be kept behind bars.)
4. Hunger/Tiredness Makes Us Less Tolerant of Those Who Are Different
Given that the study did not report any different impact by race (Jewish/Arab) or gender, this might appear not to explain the data.
5. Hearing Cases Reminds Judges of How Prone to Recidivism Parole Seekers are Likely to be.
Maybe, but that theory fails to explain why a break/meal resets the mind. Maybe chatting with your colleagues reconnects you to a more humane point of view.
6. When a Judge has Written a Number of Decisions, it is Hard for Him or Her to Find the Energy to Write a Longer One in Favor of Release.
This makes particular sense to me. It fits particularly well with the suggestion from the data that the issue is not so much elapsed time, but number of decisions. This theory could be tested by requiring more detailed explanations of decisions against the parole seeker. If so, this would have an impact on the increasing tendency of appellate courts to require written findings before making certain kinds of orders (usually imposed at least in part as a disincentive, I suspect.)
Thoughts on Future Research
Of course almost any judicial or quasi judicial environment would be appropriate for such research — although care would have to be taken to ensure that ordering of cases was random, in many systems it is the opposite. The bail decision is probably the one most similar to the situation in the Israeli parole study. Moreover, many jurisdictions have good data about prior record, community ties, etc., collected in the bail recommendation process. (Where a court staffer makes a recommendation to the court, there is also a question about whether the nature of the recommendation is impacted by when it is decided upon.)
It would be interesting to conduct such research, inform judges of the conclusions, and repeat the research. The effect might well be reduced for a time, and then return.
It would also be interesting to take steps to reduce judicial tiredness, possibly by interspersing types of cases, or taking a short stretch break.